Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment’s prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun. He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home. Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

…

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff’g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize. Id. at 554. A list of firearms was included in the affidavit, but not attached to the warrant. Id. Only lawful firearms were found. Id. at 555. The homeowners later filed a civil rights action for damages. Id. The Supreme Court upheld the Ninth Circuit’s conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity. Id. at 563-566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment. Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd. The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

This Court has held that police officers who procure and execute warrants later

determined invalid are entitled to qualified immunity, and evidence obtained should not

be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable.” United States v. Leon,